Hardy v. Unum Life Insurance Company of America

U.S. District Court, District of Minnesota September 4, 2024

Trial Court Opinion

                   UNITED STATES DISTRICT COURT                          
                      DISTRICT OF MINNESOTA                              
MARK W. HARDY,                                                           
                                      Civil No. 23-563 (JRT/JFD)         
                       Plaintiff,                                        

v.                                                                       
                                 MEMORANDUM OPINION AND ORDER            
UNUM LIFE INSURANCE COMPANY OF   ON CROSS MOTIONS FOR JUDGMENT           
AMERICA,                          ON THE ADMINISTRATIVE RECORD           

                      Defendant.                                         

    Denise Yegge Tataryn, NOLAN THOMPSON LEIGHTON & TATARYN PLC,         
    1011 First Street South, Suite 410, Hopkins, MN 55343, for Plaintiff. 

    Jake Elrich and Terrance J. Wagener, MESSERLI & KRAMER P.A., 100 South 
    Fifth Street, Suite 1400, Minneapolis, MN 55402, for Defendant.      


    Mark W. Hardy brings this action against Defendant Unum Life Insurance Company 
of America (“Unum”) pursuant to the Employee Retirement Income Security Act of 1974 
(“ERISA”),

29 U.S.C. § 1001

, et seq. He alleges that Unum improperly terminated his
employer-provided long-term disability benefits after he was diagnosed with and
received treatment for multiple myeloma, an incurable cancer. The parties filed cross
Motions for Judgment on the Administrative Record pursuant to Federal Rules of Civil
Procedure 39(b) and 52(a)(1). Hardy seeks the reinstatement of his disability benefits,
and Unum seeks affirmance of its decision to terminate Hardy’s benefits.
After carefully considering the entire record and arguments, the credibility of the
evidence, and the applicable law, the Court will find that Unum improperly terminated

Hardy’s long-term disability benefits. As a result, the Court will grant Hardy’s Motion and
deny Unum’s Motion. The Court will order Unum to reinstate Hardy’s disability benefits
retroactively to the date of termination, resume paying Hardy’s disability benefits,
calculate any owed and future benefits by pro-rating Hardy’s annual partner distributions

over the entire year in which they were received, and award Hardy reasonable attorney’s
fees and costs and prejudgment interest. Before ordering a specific amount of fees or
prejudgment interest, however, the Court will require Hardy to file an affidavit outlining

fees and costs and will order additional briefing from the parties on prejudgment interest.
FINDINGS OF FACT1
1. The Findings of Fact set forth herein are undisputed or have been proven by
a preponderance of the evidence.
2. To the extent that the Court’s Conclusions of Law include what may be

considered Findings of Fact, they are incorporated herein by reference.

1 The parties submitted the administrative record that Unum developed to evaluate
Hardy’s claim for benefits. (Decl. Susan Goen, Sealed Ex. A (“AR”), Feb. 29, 2024, Docket No. 28.)
Each page is stamped in the bottom right corner with UA-CL-LTD-XXXXXX, with XXXXXX
representing the page number. For clarity, the Court cites to “AR” then the page number when
citing the administrative record. For example, UA-CL-LTD-000104 is (AR 104.). For pages
stamped in the bottom right corner with UA-CL-LTD POLICY-XXXXXX, Docket No. 28-5, the Court
cites to “POL” then the page number. For example, UA-CL-LTD POLICY 000012 is (POL 12.)
I. THE PARTIES
3. Hardy, a 56-year-old resident of Minnesota, is a partner in the law firm of

Geraghty, O’Loughlin & Kenney, P.A., where he has been employed since 2003. (Compl.
¶¶ 4–5, 20, Mar. 9, 2023, Docket No. 1; AR 1248, 2651.)
4. Geraghty, O’Loughlin & Kenney, P.A. provides long-term disability benefits
to its employees through Unum. (POL 3.)

5. Hardy is covered under the long-term disability policy as a partner. (AR
2650.)
II. UNUM’S LONG-TERM DISABILITY POLICY
6. Hardy’s long-term disability policy (“Policy”) defines various terms and

explains how to determine whether someone is disabled under the plan.
7. Under the Policy, a partner is disabled if:
[B]ecause of injury or sickness:

1. the insured cannot perform each of the material duties
of his regular occupation; or

2. the insured, while unable to perform all of the material
duties of his regular occupation on a full-time basis, is:

a. performing at least one of the material duties of
his regular occupation on a part-time or full-time basis;
and

b. earning currently at least 20% less per month
than his indexed pre-disability earnings due to that
same injury or sickness.

(POL 12.)
8. For attorneys, “regular occupation” means “the specialty in the practice of
law which the insured was practicing just prior to the date disability started.” (POL 12.)

9. The Policy does not define “material duties.”
10. Indexed pre-disability earnings are “the insured’s basic monthly earnings in
effect just prior to the date his disability began adjusted on the first anniversary of benefit
payments and each following anniversary.” (POL 10.)

11. To receive benefits, an insured must provide “proof of continued disability
and regular attendance of a physician.” (POL 25.)
12. The Policy permits Unum to require a clamant to be evaluated by a medical

practitioner or a vocational expert of its choosing or to be interviewed by an Unum
representative. (POL 26.)
13. Unum’s Claims Manual, which provides guidance in evaluating a disability
claim, explains that disability is to be evaluated on the specific tasks that comprise a

claimant’s occupation, and not solely on the claimant’s ability to perform at a general
level of physical work activity. (AR 2521.) Additionally, the Claims Manual explains that
“[w]hile usage of the DOT physical demands . . . provides a starting point for defining the
physical requirements of a specific occupation, they are generally insufficient as

standalone descriptions.” (AR 2521 (emphasis added).)
14. Unum’s Claims Manual permits subjective symptoms to be considered. The
manual instructs that subjective symptoms are assessed with respect to their sufficiency
to support their existence, intensity, frequency, and duration; their consistency with the
underlying diagnoses; and their reported effect on physical, emotional, and cognitive

functioning. (AR 2517–19.)
15. The amount of the disability benefit is 60 percent of an insured’s basic
monthly earnings not to exceed the maximum monthly benefit, less other income
benefits. (POL 5.) The maximum monthly benefit is $10,000. (POL 5.)

16. If an insured is working while disabled and earning more than 20 percent of
his indexed pre-disability earnings in his regular occupation or another occupation, the
monthly benefit will be figured as follows:

1. During the first 12 months, the monthly benefit will not
be reduced by any earnings until the gross monthly benefit
plus the insured earnings exceed 100% of his indexed pre-
disability earnings. The monthly benefit will then be reduced
by that excess amount.

2. After 12 months, the following formula will be used to
figure the monthly benefit.

(A divided by B) x C

A = The insured’s “indexed pre-disability earnings” minus the
insured’s monthly earnings received while he is disabled.

B = The insured’s “indexed pre-disability earnings”.

C = The benefit as figured above, but not including
adjustments under the Cost of Living Adjustment provision.

(POL 15.)
17. The Policy defines “basic monthly earnings” as “the insured’s average
monthly earnings as figured: (a) from the W-2 form . . . for the calendar year just prior to

the date disability begins; or (b) for the period of employment if no W-2 form was
received.” (POL 6.)
18. The Policy does not define “monthly earnings” received while disabled.
19. Disability benefits are terminated when the claimant is no longer disabled.

(POL 17.)
III. HARDY’S OCCUPATION
20. At the time of Hardy’s cancer diagnosis, he was a medical malpractice trial
attorney. (AR 2651.)

21. In September 2020, Unum performed a vocational assessment. Unum’s
vocational assessment identified Hardy’s occupation as the more specialized occupation
of “Attorney Litigation” (as opposed to “Attorney”), consistent with the Policy. (AR 1046.)
22. The vocational assessment also included a description of the material and

substantial duties of a Litigation Attorney, including interviewing clients and witnesses,
taking and defending depositions, attending pre-trial hearings, and preparing for and
conducting trials. (AR 2345–46; see also AR 2043.)

23. Based on the specialized occupation and associated duties, Unum utilized
the Dictionary of Occupational Titles (“DOT”), Occupational Outlook Handbook (“OOH”),
and the “enhanced” Dictionary of Occupational Titles (“eDOT”) to determine the
following physical and mental/cognitive demands of a Litigation Attorney:2

Physical Demands:
Sedentary Work: Mostly sitting, may involve standing or
walking for brief periods of time, lifting, carrying, pushing,
pulling up to 10 lbs occasionally.
Constantly: Talking and hearing
Frequently: Reaching (desk level), handling, fingering and near
acuity
Occasionally: Reaching upward, reaching downward,
keyboard use and visual accommodation.
. . .
Mental/Cognitive Demands:
Directing, Controlling, or Planning Activities for Others:
Involves accepting responsibility for formulating plans,
designs, practices, policies, methods, regulations, and
procedures for operations or projects; negotiating with
individuals or groups for agreements or contracts; and
supervising subordinate workers to implement plans and
control activities.
Making Judgments and Decisions: Involves solving problems,
making evaluations, or reaching conclusions based on
subjective or objective criteria, such as the five senses,
knowledge, past experiences, or quantifiable or factual data.
Dealing with People: Involves interpersonal relationships in
job situation beyond receiving work instructions.
Performing a Variety of Duties: Involves frequent changes of
tasks involving different aptitudes, technologies, procedures,
working conditions, physical demands, or degrees of
attentiveness without loss of efficiency or composure.

(AR 2042–43.)

2 Dictionary of Occupational Titles, Fourth Edition, United States Department of Labor
Employment Training Administration (Revised 1991); Occupational Outlook Handbook, United
States Bureau of Labor Statistics, www.bls.gov/ooh/home.htm; Enhanced Dictionary of
Occupational Titles, Economic Research Institute, www.erieri.com/occupationalassessor.
IV. HARDY’S CANCER DIAGNOSIS, TREATMENT, AND SYMPTOMS
24. In October 2016, Hardy fractured his pelvis while running. (AR 2653, 3504.)

Doctors then discovered a plasmacytoma in his left superior pubic ramus. (AR 2653,
3504.)
25. A month later, Hardy fractured his pelvis again. (AR 2653.) He underwent
surgery to remove the tumor and started a five-week course of radiation. (AR 2654.)

26. In June 2017, Hardy fractured his pelvis a third time, and tests revealed that
the plasmacytoma had spread. (AR 2654.) Hardy was diagnosed with multiple myeloma,3
an uncurable cancer, and immediately began high-dose triple chemotherapy. (AR 2654,
2676.)

27. In September 2017, Hardy underwent an autologous bone marrow
transplant.4 (AR 2654.) After the transplant, initial bone marrow biopsy results suggested
that Hardy’s cancer was in stringent complete remission. (AR 2676.) Hardy took a leave

of absence to recover from the transplant. (AR 863.)
28. Hardy returned to work in January 2018, resuming full-time hours in
February. (AR 3703.)

3 Multiple myeloma is a cancer that forms in certain white blood cells called plasma cells.
(AR 2561.) It causes plasma cells to accumulate in the bone marrow and crowd out healthy blood
cells, which causes bone tumors and produces abnormal proteins that cause other complications
in the body. (AR 2561.)
4 Autologous stem-cell transplantation is “transplantation of stem cells removed from a
patient, and given back to that same patient, for the purpose of growing new marrow after
myeloablation.” (AR 2651.)
29. Hardy began long-term maintenance chemotherapy with Revlimid, which is
a drug with anti-myeloma effects and is standard for post bone marrow transplant

multiple myeloma patients. (AR 2655, 2676.) Hardy was originally prescribed 10 mg of
Revlimid daily. (AR 2676.)
30. Common side effects of Revlimid include fatigue, lack of stamina, diarrhea,
nausea, and peripheral neuropathy. (AR 2655, 2676.)

31. Hardy also started receiving infusions of Zometa to treat his bone damage.
(AR 2880, 2955, 2958.)
32. Hardy struggled due to the sequelae of his treatments, including the side

effects of Revlimid, which caused significant fatigue, lack of stamina, pain, very frequent
diarrhea, nausea, vomiting, and peripheral neuropathy. (AR 2656.)
33. Hardy occasionally took Ativan to mitigate his nausea, received weekly
vitamin B12 injections for his neuropathy, and took Imodium for the diarrhea. (See, e.g.,

AR 2473, 2590–91, 2661, 2676, 3063, 3638.)
34. In February 2018, Hardy became an oncology patient of Dr. Gregory M.
Vercellotti, M.D. (AR 2677.) Dr. Vercellotti is the Section Head of Benign Hematology at
the University of Minnesota. (AR 2598.)

35. Dr. Vercellotti changed Hardy’s Revlimid prescription to 10 mg daily on a 28-
day cycle, with 21 days taking the drug followed by 7 days off. (AR 2676.) The plan was
to eventually increase the dosage to 15 mg daily, but due to side effects, Hardy was never
able to increase the dosage. (AR 2655, 2676.)

36. Hardy had monthly blood tests, which revealed some abnormalities. (See,
e.g., AR 2844–45, 2866–72, 2963, 2982–85, 3055.)
37. Hardy reported to Dr. Vercellotti a cyclical pattern where his fatigue
increased over the course of the 21 days taking Revlimid and lessened during the 7 days

off. (See, e.g., AR 2676, 2981.)
38. Hardy also reported memory issues, lack of stamina, peripheral neuropathy,
and pain in his pelvis where he had bone damage and had received radiation therapy,

which made it difficult for him to sit for long periods of time. (AR 2981.) He confessed
his concerns about his ability to perform as a full-time trial attorney. (AR 2981.)
Additionally, Hardy experienced near-daily nausea and ongoing diarrhea. (AR 2676.)
39. Dr. Vercellotti reduced Hardy’s Revlimid dosage to 10 mg daily for 14 days

on with 14 days off, despite Hardy’s concerns that such a reduction could decrease his
chance of long-duration remission and survival. (AR 2677, 2981–82.) Dr. Vercellotti noted
that he thought “maybe [Hardy] is not able to continue to perform his profession
optimally” due to “his morbidity of his chemotherapy and myeloma.” (AR 2982.)

40. Medical records document that Hardy’s symptoms of fatigue, nausea,
chronic pain, loose stools/diarrhea, sleep difficulty, and anxiety continued, and his law
partner, David Hutchinson, suggested that Hardy stop doing trial work. (AR 2648–49,
3002, 3050, 3063, 3075.)

V. APPLICATION AND APPROVAL OF DISABILITY BENEFITS
41. In February 2019, Hardy reduced his hours to part-time and applied for
partial long-term disability benefits through the Policy. (AR 1248–49.)
42. Hardy explained that the “[e]ffects of multiple myeloma and side effects of

prior treatments and ongoing maintenance chemotherapy” prevented him from
performing all of his responsibilities as a full-time trial attorney, especially “handling trials,
lengthy depositions, lengthy court appearances, long conferences with clients and expert
witnesses, traveling long distances and working long days.” (AR 1249.)

43. Unum underwent a process to evaluate Hardy’s claim.
44. Dr. Vercellotti certified Hardy’s pelvic fractures, multiple myeloma
diagnosis, subsequent surgeries and treatments, and vitamin B12 deficiency in an

Attending Physician statement. (AR 1277–79.) Dr. Vercellotti wrote that Hardy’s
“significant sequelae,” including neuropathy, fatigue, nausea, diarrhea, bone destruction
and chronic pain, and lack of stamina, “limit his ability to carry out all of his responsibilities
as a trial lawyer and litigator” and thus “limit[] him to light office work on a part-time basis

as he feels able to do.” (AR 2678.) Dr. Vercellotti provided treatment records from
December 2018 wherein he opined that Hardy’s symptoms were likely due to side effects
from Revlimid and his vitamin B12 deficiency. (AR 1281–82.)
45. Geraghty, O’Loughlin & Kenney, P.A. confirmed that Hardy was working
part-time, and that Hardy’s symptoms prevented him from “taking or defending lengthy

depositions, trying cases, handling lengthy court hearings, attending lengthy conferences,
traveling long distances for work, or being present in the office full time.” (AR 1255–56.)
46. On a phone call with an Unum representative, Hardy verified that he had
not taken on any trials since his disability because he knew “he would not be able to

[sustain] the 16 hours back-to-back days needed.” (AR 138–40.)
47. On May 13, 2019, Unum approved Hardy’s claim. (AR 245–48, 285.) Unum
determined that Hardy’s disability began on February 1, 2019, and that his benefits would

begin effective May 2, 2019. (AR 245.)
VI. RECERTIFICATION OF DISABILITY BENEFITS
48. In June 2020, Unum conducted an annual review of Hardy’s claim and
requested updated information. (AR 1807–08.)
49. Hardy reported that he “work[s] several hours a day as a lawyer and partner

in a law firm. When not working, I exercise, do household chores, [and] spend time with
my wife and daughter.” (AR 1850.) He answered “No” to whether his condition
prevented him from caring for himself or required assistance with activities of daily living.

(AR 1850.) Hardy indicated that Dr. Vercellotti was his sole treating provider. (AR 1851.)
50. Dr. Vercellotti provided an updated Attending Physician Statement,
indicating that Hardy continued to experience neuropathy, fatigue, nausea, diarrhea,
chronic pain, and lack of stamina. (AR 1865.) He re-certified that Hardy’s symptoms
continued to limit his ability to perform all of his responsibilities as a full-time trial lawyer.
(AR 1865–66.) Dr. Vercellotti attached treatment notes from a remote clinic visit in April

2020, wherein he had noted that Hardy was “doing well,” that Hardy had reported some
improvements in his symptoms, that Hardy was exercising regularly, and that his
Karnofsky score was 100,5 indicating a normal ability to perform daily activities. (AR
1868–69, 2220.)

51. In July 2020, Unum recertified Hardy’s benefits. (AR 675–76.)
VII. UNUM’S REINVESTIGATION AND TERMINATION OF BENEFITS
52. Weeks after recertification, Unum documented that Hardy’s “[c]apacity for
full time is unclear” and initiated a reinvestigation of his claim. (AR 723–25.)

53. Unum requested clarification from Dr. Vercellotti regarding Hardy’s ability
to perform the demands of his occupation on a full-time basis. (AR 2075.) Vercellotti
repeated his diagnosis of multiple myeloma and indicated that Hardy’s symptoms

continue to limit him to part-time work as a trial lawyer. (AR 2076.)
54. Dr. Vercellotti’s treatment notes from a virtual clinic visit in October 2020
indicated that Hardy was “doing well,” that his multiple myeloma was in remission, that
his Karnofsky score was 100, and that Hardy thought that his neuropathy had improved

from the vitamin B12 injections. (AR 2231–36, 2679.) The radiographic bone survey and

5 The Karnofsky Performance Status is a standard way of measuring the ability of cancer
patients to perform ordinary tasks.
PET/CT scans showed “Stable postoperative changes of curettage and cement packing in
the left superior public rami. No new lytic lesion or compression fracture identified.” (AR

2231.)
55. On a phone call with an Unum representative, Hardy reported that he biked
daily, went outside when possible, hiked, and had a trainer. (AR 2253.) He tried to
exercise an hour every day. (AR 2253.) Hardy believed that the “best thing is exercise”

for someone in his position. (AR 2253.) When asked about “his biggest barrier to
returning to work full-time,” Hardy responded that because of his fatigue, neuropathy,
and nausea and vomiting, he “cannot return to the rigors and long hours of being a trial

attorney.” (AR 2253.) He reported that he “just can’t go back” to working up to 18 hours
a day during trial. (AR 2253–54.)
56. Dr. Vercellotti’s treatment notes from March and October 2019 indicate
that Hardy had been skiing and had gone on a 90-mile canoe trek with his wife and

daughter. (AR 987, 2880.)
57. In November 2020, an Unum clinical consultant determined that Hardy was
not precluded from performing the demands of his job on a full-time basis, as his
treatment notes indicated that he had been doing well over the last year, that some of

his symptoms had improved, and that he had been “exercising regularly.” (AR 2260.) The
reviewer concluded that “[t]he absence of disease and this level of activity is inconsistent
with an inability for seated tasks with the ability for positional changes.” (AR 2260.)
58. Hardy’s information was then referred to Unum’s reviewing operations
physician, Dr. Robert Nosaka, who is board certified in internal medicine. (AR 2287–95.)

Dr. Nosaka was advised that Hardy’s occupation was “Attorney Litigation” and was
provided the physical and mental/cognitive demands of a Litigation Attorney. (AR 2295.)
59. Dr. Nosaka reviewed Hardy’s medical and vocational records and concluded
that Hardy was not precluded from performing the material duties of his regular

occupation on a full-time basis. (AR 2292–93.) He noted Hardy’s remission status, that
his most recent physical examinations were normal, that Hardy reported feeling “pretty
good” with no signs of acute distress, his normal lab results, and his Karnofsky score of

100. (AR 2293.) He also noted that despite Hardy’s “complaints of significant pain,”
“[t]here have been no referrals to specialists such as Gastroenterology or Neurology,” and
Hardy’s medications were “minimal.” (AR 2293.) Dr. Nosaka also documented Hardy’s
biking, skiing, travelling, and 90-mile canoe trek, and concluded that Hardy’s “level of

activity is inconsistent with an inability to perform his occupation full time which is
performed at a sedentary level of physical demand.” (AR 2293.)
60. Because Dr. Nosaka reached a different conclusion than Dr. Vercellotti
regarding Hardy’s functional capacity, he recommended additional medical review. (AR

2295.)
61. Unum then referred Hardy’s claim to its designated medical officer, Dr.
Herbert Dean, who is board certified in oncology, hematology, and internal medicine. (AR
2299–301.) Dr. Dean was advised that Hardy’s occupation was “Attorney Litigation” and
was provided with the physical and mental/cognitive demands of a Litigation Attorney.

(AR 2297–99.)
62. Dr. Dean reviewed the medical records, including Dr. Vercellotti’s and Dr.
Nosaka’s reviews and other documents in Hardy’s file. (AR 2300.)
63. Based on his review, Dr. Dean concluded that Dr. Vercellotti’s opinion was

not supported by medically acceptable clinical or laboratory diagnostic techniques or
other evidence in the claim file. (AR 2301.) Like Dr. Nosaka, Dr. Dean concluded that
Hardy was not precluded from performing the material duties of his occupation full-time.

(AR 2301.) He noted Hardy’s remission status, lab and imaging results, and regular
exercise, and opined that Hardy was “tolerating” his maintenance Remlivid therapy and
had no restrictions or limitations. (AR 2301.)
64. On November 30, 2020, Unum requested a copy of Hardy’s job description

from his employer. (AR 2323.) The firm provided a description of Hardy’s pre-diagnosis
duties and stated that Hardy has not performed any trials or other lengthy or arduous
tasks since February 2019. (AR 1141–43.)
65. Dr. Nosaka also contacted Dr. Vercellotti to clarify Hardy’s limitations. (AR

2334–36.) Dr. Vercellotti indicated that Hardy “makes it very clear to me that he cannot
spent [sic] 8 hours in the office thinking clearly about depositions or having the ability to
provide his clients with optimal attention” because he “develops mental fogginess and
fatigue.” (AR 2337.) Dr. Vercellotti wrote that despite Hardy’s regular exercise, “the
collateral damage has been primarily the peripheral neuropathy, the effects of the

radiation and the lesion of his left pubic ramus,” and such symptoms make it difficult for
Hardy to assume his responsibilities over an 8-hour day. (AR 2337.) In Dr. Vercellotti’s
opinion, Hardy should work “an approximately 5-1/2 hour day occasionally and frequently
might need a 3-1/2 to 5-1/2 hour day,” though he “certainly is not fully disabled.” (AR

2337.)
66. In December 2020, Dr. Nosaka conducted a medical re-review of Hardy’s
claim based on the additional medical and occupational information. (AR 2354.)

67. Dr. Nosaka again opined that the restrictions and limitations imposed by Dr.
Vercellotti were unsupported, and that the additional occupational information did not
alter his prior opinion. (AR 2356–57.) Specifically, Dr. Nosaka reasoned:
[T]here has been sufficient time to recover from adverse side
effects and to acclimate to previous and current treatment.
The insured has been able to perform the duties of his
occupation part-time, which is performed at sedentary level
of physical demand, for more than year to allow for work
hardening. Additionally, as the records indicate, he has been
able to engage in extensive activities for leisure and exercise.
Thus, given the progression of time, the work hardening, the
minimal physical demands of the occupation, and the level of
activity, OSP opines that the insured is not precluded from
performing the full-time duties of the occupation.
(AR 2356.) Dr. Nosaka wrote that the additional occupational duties did not alter his prior
opinion that the medical evidence does not support that Hardy was precluded from

performing the material duties of his occupation on a full-time basis. (AR 2357.)
68. Given the continued disagreement between Dr. Vercellotti and Dr. Nosaka,
as well as the additional occupational information provided by Hardy’s firm, Unum also
requested that Dr. Dean re-review Hardy’s claim. (AR 2358.)

69. Dr. Dean’s prior opinion was not altered by the additional occupational
information or by Dr. Vercellotti’s most recent letter. (AR 2361.)
70. On December 10, 2020, Unum terminated Hardy’s benefits. (AR 2377–80.)

71. In its termination letter, Unum outlined Dr. Nosaka’s review of Hardy’s claim
and medical records and his ultimate conclusion that there was “no support for
restrictions that would prevent [Hardy] from the full-time activities required in [his]
occupational duties,” especially given his normal physical exams, Karnofsky score of 100,

lack of significant findings like distress, weight loss, cognitive deficiency, or abnormal
musculoskeletal findings, and improvements of symptoms due to vitamin B12 injections
and other medications. (AR 2379.) In addition, Unum explained Dr. Nosaka’s
observations that “[t]here have been no referrals to specialists such as gastroenterology

or neurology,” that Hardy’s use of medications had been “minimal,” and that Hardy had
engaged in physical exercise to an extent that was “inconsistent with an ability to perform
[his] occupation full-time which is performed at a sedentary level of physical demand.”
(AR 2379.) Unum also pointed to Dr. Dean’s similar conclusions. (AR 2380.)

VIII. HARDY’S APPEAL OF UNUM’S DECISION
72. Hardy administratively appealed Unum’s decision on February 11, 2022.
(AR 2447–63.)
73. The appeal letter challenged Unum’s medical reviewers’ opinions and

Unum’s vocational assessment of the physical and mental demands of Hardy’s
occupation. (AR 2453–59.)
74. Hardy also included a new letter from Dr. Vercellotti along with Dr.
Vercellotti’s 50-page curriculum vitae; declarations from Hardy and his spouse, Tanya

Snyder; declarations from two of Hardy’s colleagues; an Independent Employability
Assessment by Ken Askew; medical literature; and medical records from October 2016 to
the date of the appeal. (AR 2459–63.)
75. In his appeal letter, Dr. Vercellotti described his treatment of Hardy since

2017 and the symptoms Hardy reported during and after such treatment. (AR 2675–80.)
He described a remote clinic visit in April 2021, wherein Hardy reported fatigue, lack of
stamina, especially during the third week of his Revlimid cycle, and diarrhea 5 out of 7

days a week. (AR 2679.) In his treatment notes, Dr. Vercellotti documented that Hardy’s
pelvic pain “limits how long he can sit in an office chair without getting up to stretch and
requires him, for example, to use his arms and hands to lift his left leg when he gets into
or out of his car.” (AR 2679–80.) He also wrote that Hardy was experiencing neuropathy
in the toes and fingers, which made typing and writing difficult. (AR 2680.)

76. Dr. Vercellotti opined that Hardy’s symptoms continued to preclude him
from performing all material duties of his job, which “require long periods of focus and
concentration, quick processing of new information, and that he be able to think quickly
on his feet.” (AR 2677.) He explained that Hardy’s regular exercise, skiing, and 90-mile

trek did not change his opinion regarding Hardy’s functionality because “regular exercise
and maintaining fitness are often effective ways to address and partially mitigate multiple
myeloma treatment-related fatigue and lack of stamina.” (AR 2678.) “Whether Mr. Hardy

is able to occasionally ski has little bearing on whether he is able to perform his former
duties as a full-time litigator and trial attorney.” (AR 2678.)
77. In Hardy’s declaration, he provided his medical history and claim history as
well as a detailed explanation of his restrictions and limitations. (AR 2650–69.)

Specifically, Hardy explained that fatigue and lack of stamina, “when combined with long
hours of intense focus and concentration, lead to lapses of focus and concentration,
mental fog, and resulting memory gaps,” and that part-time work allowed him to manage
these symptoms because he was able to routinely sleep eight to nine hours a night and

incorporate exercise into his daily routine. (AR 2660.) Additionally, Hardy wrote that
during the 21-day Revlimid cycle, his near-daily nausea, and persistent, watery diarrhea
would be “difficult to manage during trial, lengthy court appearances, or long days of
depositions or meetings with clients and experts.” (AR 2661.) To mitigate these
symptoms, Hardy avoided eating until later in the day, took Zofran (anti-nausea

medication), sometimes took Ativan, and took over-the-counter Imodium (for diarrhea).
(AR 2661.) Chronic pain in his pelvis would grow from “minor at the start of a prolonged
period of sitting” to “significant to the point of distraction over long periods of time sitting
without breaks to stand and walk.” (AR 2661.) Hardy mitigated this pain by eliminating

lengthy periods of sitting. (AR 2661.) Finally, Hardy’s peripheral neuropathy caused
numbness and tingling in his fingertips and toes. (AR 2661.) The neuropathy had
improved with vitamin B12 treatments, but “remain[ed] a constant and consistent side

effect” that slowed Hardy’s typing and made it less accurate, slowed his note-taking
abilities, and deteriorated the quality of his handwriting. (AR 2661.)
78. Tanya Snyder’s declaration provided her observations of Hardy’s difficulties,
opining that the reason Hardy was doing so well was “largely because he is working in a

limited capacity.” (AR 2673–74 (emphasis omitted).)
79. In another declaration, David Hutchinson, Hardy’s law partner, described
his observations of Hardy’s symptoms and limitations, writing that Hardy “is no longer
physically capable of trying cases, including as a second chair lawyer.” (AR 2649.)

80. Robert Mahoney, another law partner, detailed the professional duties of a
trial lawyer, including 18-hour trial days and the need to maintain focus and readiness for
long periods of time. (AR 2671–72.)
81. The new evidence also included an Independent Employability Assessment
by Ken Askew, a vocational expert. (AR 2587–97.) In October 2021, Askew determined

that Hardy’s part-time schedule was Hardy’s maximum vocational capacity. (AR 2596–
97.) During his 2-1/2-hour interview with Hardy, Askew observed that Hardy’s energy
level, rate of speech, and overall demeanor diminished. (AR 2596.) He opined that the
occupational information from Hardy’s employer was more reliable than the information

contained in the DOT and OOH, although he acknowledged they are reliable sources of
data. (AR 2592, 2597.)
IX. UNUM’S REVIEW AND DENIAL OF APPEAL
82. Unum provided the information and documentation on appeal for

independent vocational and medical reviews.
83. The vocational reviewer noted that Hardy “has consistently provided his job
title as Trial Attorney and Litigation Attorney. The employer has provided similar

information. Therefore, Litigation Attorney as described would meet the specialty
definition as it differs from Attorney.” (AR 3609.) She concluded that the DOT, OOH, and
eDOT descriptions of the occupational duties and demands of Litigation Attorney spoke
to Hardy’s actual duties and demands as provided by his employer. (AR 3609–10.) The

vocational reviewer also noted that Hardy’s “trial work, depositions, research and time
with clients is included in the description of duties of the occupation of Attorney
Litigation. Travel is included as is working over 40 hours per week.” (AR 3610.)
84. On appeal, Unum requested a medical review from Dr. Neal Greenstein,
who is board certified in internal medicine. (AR 3620–22.)

85. Dr. Greenstein was asked to opine whether the medical evidence supported
restrictions and limitations that would have precluded Hardy from performing each of his
occupational demands after December 10, 2020. (AR 3620.) The file evidence provided
to Dr. Greenstein included the physical and mental/cognitive demands of Attorney

Litigation as well as a copy of Ken Askew’s Independent Employability Assessment. (AR
3617, 3620–22.)
86. Dr. Greenstein concluded that the medical information in the record was

inconsistent and insufficient to support Hardy’s claim. (AR 3620.) He noted that Hardy
was in remission, that he was “seen virtually at low-intensity 6-month intervals by Dr.
Vercellotti” for two years, that he self-reported during those visits that he was “feeling
pretty good,” that his neuropathy was improving on vitamin B12, that he was regularly

exercising, and that his Karnofsky score was 100. (AR 3620.)
87. Dr. Greenstein thus concluded that Hardy was not disabled as of December
10, 2020, reasoning that:
[T]he existence, intensity, frequency, and duration of the
claimant’s reported symptoms, including but not limited to
fatigue, pelvic pain, cannot sit too long and needs to get up to
stretch, nausea with a loss of appetite, tingling and numbness
in fingers and toes, and difficulty typing and writing is not
consistent with a physical exam, diagnostic findings,
treatment intensity, and reported activities. I acknowledge
the claimant’s reported symptoms, the various letters, and
the 11/2021 employability assessment. However, it should be
noted there was no in-person visits, the documented virtual
exams, including a Karnofsky score of 100, and diagnostics
were clinically unremarkable.”

(AR 3621.)
88. On May 4, 2022, Unum upheld its termination of Hardy’s benefits. (AR
3677–83.)
X. OTHER FINDINGS OF FACT
89. The Court takes judicial notice that the height of the COVID-19 pandemic
was in the years 2020 and 2021.6 Fed. R. Evid. 201(c)(1).
90. The Court did not find evidence that Dr. Vercellotti, the only provider who
personally examined Hardy, believed that Hardy was unreliably reporting his symptoms,
that his self-reported symptoms lacked credibility, or that Hardy was engaging in

symptom magnification.
91. Unum never required Hardy to submit to an independent medical
evaluation, despite the Policy allowing so. (POL 26.)

6 Meredith S. Shiels, COVID-19 Was Third Leading Cause of Death in the United States in
Both 2020 and 2021, National Institutes of Health (July 5, 2022), https://www.nih.gov/news-
events/news-releases/covid-19-was-third-leading-cause-death-united-states-both-2020-2021;
Missourians for Fiscal Accountability v. Klahr,

830 F.3d 789, 793

 (8th Cir. 2016) (recognizing 
authority to take judicial notice of government websites); e.g., In re RFC and ResCap Liquidating 
Tr. Action,

444 F. Supp. 3d 967

, 969 & n.1 (D. Minn. 2020) (taking judicial notice of COVID-19 data
from the CDC).
92. Based on the Administrative Record, no medical professional who
personally examined Hardy cleared him to work full-time.

93. Unum did not present any evidence contradicting Hardy’s symptoms.
XI. PROCEDURAL HISTORY
94. After Unum denied Hardy’s appeal, Hardy filed this ERISA action. (Compl.)
95. The parties filed cross Motions for Judgment on the Administrative Record.

(Def.’s Mot. J. on Admin. Record, Feb. 29, 2024, Docket No. 25; Pl.’s Mot. J. on Admin.
Record, Feb. 29, 2024, Docket No. 31.)
96. Unum filed the Administrative Record as a sealed exhibit on which both
parties rely. (Decl. Susan Goen, Sealed Ex. A (“AR”), Feb. 29, 2024, Docket No. 28.)

97. The Court held a hearing on the Motions on July 9, 2024. (See Minute Entry,
July 9, 2024, Docket No. 52.)
CONCLUSIONS OF LAW
I. STANDARD OF REVIEW

1. ERISA allows a participant in an ERISA-regulated plan to bring a civil action
“to recover benefits due to him under the terms of his plan, to enforce his rights under
the terms of the plan, or to clarify his rights to future benefits under the terms of the
plan.”

29 U.S.C. § 1132

(a)(1)(B).                                        

    2.   The Court reviews plan determinations  de novo unless the plan grants 
discretionary authority to the plan administrator.  Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101, 115

 (1989); accord Johnson v. U.S. Bancorp Broad-Based Change In Control 
Severance Pay Program,

424 F.3d 734, 738

 (8th Cir. 2005).  As the parties agree, the Policy 
does not give Unum discretionary authority, so the Court reviews Unum’s determination 

de novo.  (Def.’s Mem. Supp. Mot. J. on Admin. R. (“Def.’s Mem.”) at 20, Feb. 29, 2024, 
Docket No. 27; Pl.’s Mem. Supp. Mot. J. on Admin. R. (“Pl.’s Mem.”) at 18, Feb. 29, 2024, 
Docket No. 33.)  As such, the Court gives no deference to Unum’s decision.  See Davidson 
v. Prudential Ins. Co. of Am.,

953 F.2d 1093, 1095

 (8th Cir. 1992).  This applies to both 

issues of plan interpretation and fact-based determinations.  Riedl v. Gen. Am. Life Ins. 
Co.,

248 F.3d 753, 756

 (8th Cir. 2001).                                   
    3.   Hardy bears the burden of proving by a preponderance of the evidence that 

he is entitled to the reinstatement of long-term disability benefits past December 10, 
2020, within the meaning of the Policy.  See Farley v. Benefit Tr. Life Ins. Co.,

979 F.2d 653, 658

 (8th Cir. 1992).                                                      
    4.   Because the parties specifically ask the Court to exercise its factfinding 

function under Federal Rules of Civil Procedure 39(b) and 52(a)(1) to decide the case on 
the administrative record, the Court acts as a factfinder and may resolve factual disputes, 
make  credibility  determinations,  and  weigh  the  evidence.    See  Avenoso  v.  Reliance 
Standard Life Ins. Co.,

19 F.4th 1020, 1026

 (8th Cir. 2021); Chapman v. Unum Life Ins. Co. 

of Am.,

555 F. Supp. 3d 713

, 716 (D. Minn. 2021).                         
II.  RECORD EVIDENCE                                                      
    5.   It is undisputed that the Court may rely on the administrative record Unum 

filed with the Court.  Avenoso,

19 F.4th at 1025

; (see also Def.’s Mem. at 20; Pl.’s Mem. 
at 18.)                                                                   
III.  ANALYSIS                                                            
    A.   Disability Determination7                                       
    6.   Unum determined that Hardy was no longer disabled as of December 10, 

2020, and Hardy challenges this determination.  The Court must thus determine whether 
Hardy was disabled as of that date, not whether he remained disabled beyond that time.   
    7.   When reviewing an ERISA plan administrator’s decision de novo, the Court 
begins by examining the language of the plan documents.  Kitterman v. Coventry Health 




    7 The Court will not consider the two matters that involve alleged procedural defects in 
Unum’s claim administration and a 2004 Regulatory Settlement Agreement (“RSA”) that Unum 
entered with the U.S. Department of Labor and the insurance commissioners of various states.  
(See AR 2528–48.)  Hardy argues that Unum failed to follow the RSA in its administration of 
Hardy’s claim, such that the Court’s review is augmented by the agreement.  See Dwyer v. Unum 
Life Ins. Co. of Am.,

548 F.Supp.3d 468

, 472 (E.D. Pa. 2021) (determining that court’s review was 
augmented by RSA).  The RSA provides requirements for Unum’s handing of claims, including that 
Unum must give “significant weight” to an attending physician’s opinion and provide specific 
reasons when rejecting it.  (AR 2508.)  However, the Court gives no deference to Unum’s decision-
making process in its de novo review, Davidson,

953 F.2d at 1095

, so whether or not Unum 
complied with an agreement that was entered before Hardy filed his claim is irrelevant.  See 
Goldberg v. Unum Life Ins. Co. of Am.,

527 F. Supp. 2d 164, 170

 (D. Me. 2007) (discussing what 
appears to be the same RSA entered into by Unum and explaining that the RSA “simply provided 
a process whereby certain claimants could have their claims for benefits under their policies 
reassessed”).  Additionally, courts have declined to consider dated references to unfair claims 
practices when determining the propriety of a benefits decision.  See, e.g., Jones v. Unum 
Provident Corp.,

596 F.3d 433, 438

 (8th Cir. 2010).  The Court will do the same here. 
Care of Iowa, Inc.,

632 F.3d 445, 448

 (8th Cir. 2011).  The Court interprets the terms of the 
plan  documents  “by  giving  the  language  its  common  and  ordinary  meaning  as  a 

reasonable person in the position of the plan participant, not the actual participant, would 
have understood the words to mean” and by reading each provision consistently with the 
plan as an integrated whole.

Id.

 (quoting Adams v. Cont’l Cas. Co.,

364 F.3d 952, 954

(8th
Cir. 2004)).

8. Under the Policy, a claimant is disabled if he is limited from performing each
of the material duties of his regular occupation because of an injury or sickness. Thus,
when making a disability determination, the Court must look at the combination of all

limitations caused by the injury or sickness.
9. After carefully reviewing the entire record, the Court finds that the
preponderance of the evidence demonstrates that Hardy remained disabled as of
December 10, 2020, based on a combination of the effects of multiple myeloma and side

effects of his prior treatments and ongoing Revlimid maintenance therapy.
10. When Unum approved Hardy’s application for benefits, it based its decision
on the effects of Hardy’s multiple myeloma diagnosis and side effects of his prior
treatments and ongoing Revlimid maintenance therapy, as documented by Dr. Vercellotti.

Unum had initially agreed with Dr. Vercellotti that Hardy’s symptoms limited his ability to
perform each of his material duties as a medical malpractice trial attorney on a full-time
basis. Then, on December 10, 2020, Unum determined that Hardy was no longer disabled.
Unum based its termination decision on Dr. Nosaka and Dr. Dean’s opinions that Hardy
no longer had any restrictions or limitations that prevented him from performing the

material duties of his regular occupation full-time. However, Hardy had continued to
provide evidence that his symptoms were disabling and limited his ability to work as a
full-time trial attorney. Indeed, he provided evidence that he could not work 16- to 18-
hour trial days or sustain attention for long periods of time.

11. As an initial matter, the parties dispute whether Hardy’s regular occupation
is “Attorney Litigation,” as Unum determined, or “medical malpractice trial attorney,” as
Hardy argues. The Policy defines “regular occupation” for attorneys as “the specialty in

the practice of law which the insured was practicing just prior to the date disability
started.” (POL 12.) Therefore, Hardy’s “regular occupation” is the specialized occupation
of medical malpractice trial attorney.
12. Even though there is overlap between the duties and demands identified by

the DOT, OOH, and eDOT for “Attorney Litigation” and Hardy’s actual duties and demands
as supplied by his employer, the generic duties and demands supplied by the DOT, OOH,
and eDOT do not adequately encapsulate those required of Hardy’s regular occupation as
a medical malpractice trial attorney. In particular, the generic descriptions do not fully

encompass the mental and cognitive demands required of a medical malpractice trial
attorney, whose work can involve long trial days and significant emotional toil while
representing injured clients. The Court does not question the reliability of the DOT, OOH,
and eDOT as resources. See Darvell v. Life Ins. Co. of N. Am.,

597 F.3d 929

, 935–36 (8th 
Cir. 2010) (relying on the DOT’s occupation description).  But there is no doubt that the 

duties and demands of a medical malpractice trial attorney are more specialized than 
those of a generic litigation attorney.  Such duties and demands are vastly distinct from 
those of,  for example,  an  estate  attorney,  even  though  the  generic descriptions of 
“Attorney Litigation” could apply to both types of attorneys.             

    13.  Hardy’s occupation required him to be able to conduct trials and to sustain 
attention for long periods of time in his other work, such as during interviews and 
depositions with clients and witnesses.  And because the Policy requires that an attorney’s 

specialty  be  considered  in  its  definition  of  “regular  occupation,”  Unum  failed  to 
adequately consider Hardy’s functionality through the lens of his occupation as a medical 
malpractice trial attorney.  See, e.g., Doe v. Standard Ins. Co.,

852 F.3d 118

, 123–24 (1st 
Cir.  2017)  (relying  on  DOT’s  generic  description  of  “lawyer”  rather  than  claimant’s 

specialized job description as an environmental lawyer was arbitrary and capricious); 
Rahman v. Paul Revere Life Ins. Co., Inc.,

684 F. Supp. 192, 195

(N.D. Ill. 1988) (concluding
that claimant’s regular occupation was the emergency cardiology specialty he engaged in
prior to his accident, and not that of a general cardiologist). Even Unum’s Claims Manual

instructs that a disability should be evaluated by the specific tasks of a claimant’s
occupation and that, while the DOT descriptions may provide a starting point for defining
the demands of a specific occupation, they are generally insufficient on their own. It is
therefore irrelevant to the Court’s disability determination whether Hardy was able to
perform the material duties of a general litigation attorney; the question is whether Hardy

was able to perform all the material duties of a medical malpractice trial attorney as of
December 10, 2020.
14. Having settled the regular occupation matter, the Court now turns to
whether sufficient evidence supports a finding that Hardy’s symptoms were disabling. It

is clear from Dr. Vercellotti’s treatment notes that Hardy consistently reported the same
symptoms of fatigue, lack of stamina, pain, diarrhea, nausea, vomiting, and peripheral
neuropathy between the time that he applied for disability benefits and the termination

of his benefits.
15. Unum challenges the credibility of Hardy’s reported symptoms given the
lack of “objective evidence,” such as tests and lab results, to corroborate them. It is
undisputed that subjective symptoms are permitted under the Policy but must be

corroborated with additional evidence. (See AR 2517–18.) Dr. Vercellotti opined that
Hardy’s symptoms “cannot be measured objectively through clinical or laboratory
diagnostic techniques.” (AR 3638.) And courts have found that in such circumstances the
lack of objective evidence is not definitive. Pralutsky v. Metro. Life Ins. Co.,

435 F.3d 833, 839

 (8th Cir. 2006) (noting there may be cases where “objective evidence simply cannot 
be obtained”); see also Brigham v. Sun Life of Can.,

317 F.3d 72, 84

 (1st Cir. 2003) (“We 
fully recognize that laboratory tests or similar diagnostic procedures will not always be 
necessary to substantiate a claim of disability, as certain disabling conditions are not 
susceptible to such objective evaluations.”).  At any rate, Hardy’s medical history of 

plasmacytoma, multiple myeloma, pelvic fractures, and bone marrow transplant support 
his symptoms, and the record indicates that Hardy did have some abnormal lab results, 
such as low white blood counts and vitamin B12 deficiency.  And crucially, nothing in the 
record shows that Dr. Vercellotti—the only provider who personally examined Hardy—

questioned these symptoms or found that they lacked credibility.  See Avenoso, 19 F.4th 
at 1027–28.  Dr. Vercellotti is certainly better positioned to evaluate whether Hardy’s 
subjective symptoms were consistent with his observations than Unum’s reviewers, who 

never performed an in-person evaluation.  See Kaminski v. Unum Life Ins. Co. of Am.,

517 F. Supp. 3d 825

, 862 (D. Minn. 2021).  Plus, Unum itself relied on Hardy’s self-reported 
symptoms when it originally granted benefits and recertified them a year later.  The fact 
that Unum approved Hardy’s claim based on the same reported symptoms it now claims 

are uncredible cuts against a finding that Hardy’s self-reported symptoms lack credibility.  
Roehr v. Sun Life Assurance Co. of Can.,

21 F.4th 519, 526

(8th Cir. 2021) (“[T]his Court has
explained that a plan administrator’s reliance on the same evidence to both find a
disability and later discredit that disability does not amount to a reliance on ‘substantial

evidence.’”). Finally, Hardy’s self-reported symptoms are supported by medical
literature, which lists Hardy’s symptoms as common side effects of his cancer treatments
and surgeries, and are corroborated by his spouse and colleagues, who personally
observed Hardy’s restrictions and limitations. The Court thus finds that sufficient
evidence supports the credibility of Hardy’s self-reported symptoms, and the Court will

consider them in its analysis.
16. The Court next considers whether Hardy’s symptoms were disabling to such
a degree that Hardy was unable to perform each of the material duties of his regular
occupation as a medical malpractice trial attorney. There is mixed evidence on whether

and to what extent Hardy’s symptoms had improved by December 10, 2020. For example,
Dr. Vercellotti’s October 2020 treatment notes indicated that Hardy was doing well. In
particular, he noted that Hardy’s multiple myeloma was in remission and that his

Karnofsky score was 100. In November 2020, Dr. Nosaka noted that Hardy’s vitamin B12
treatments had improved his peripheral neuropathy, and Dr. Dean concluded that Hardy
was tolerating his Revlimid. However, treatment notes from April 2021 indicate that
Hardy’s pelvic pain limited how long he was able to sit in an office chair without getting

up to stretch. And during that time, Hardy continued to report peripheral neuropathy in
his toes and fingers, which made typing and writing difficult. Ultimately, though some of
Hardy’s symptoms may have improved to some extent because of the vitamin B12
injections and other medications, the Court must consider whether all of Hardy’s

reported symptoms, taken together, were disabling.
17. The record amply demonstrates that Hardy repeatedly reported a cyclical
pattern where his fatigue increased over the 21 days that he took Revlimid and lessened
during the 7 days off, as reflected in treatment notes from April 2021. Whether and to
what extent Hardy’s fatigue and lack of stamina impact his functionality as a full-time

medical malpractice trial attorney is disputed, and mixed evidence supports either
position. On the one hand, Dr. Vercellotti repeatedly documented that Hardy’s Karnofsky
score was 100. Moreover, Hardy was regularly exercising, had gone skiing, and completed
a 90-mile canoe trek. Common sense calls into question Hardy’s functionality to perform

a position that involves sedentary work when he was able to perform such a level of
physical activity. Unum’s medical reviewers pointed out this discrepancy, which Unum
ultimately relied on as a basis for its termination of Hardy’s benefits. But on the other

hand, Hardy has never claimed that he could not carry on normal physical activity or
exercise. And the question before the Court is not whether Hardy could perform normal
physical activity or exercise as of December 10, 2020, but rather whether he could
perform each of his material duties as a medical malpractice trial attorney. Thus, Hardy’s

Karnofsky score and his ability to regularly exercise appears to be of little consequence to
his basis for disability. Plus, Hardy’s occupation requires more than just physical
demands. It also requires significant mental and cognitive stamina. Assessing Hardy’s
fatigue and lack of stamina from a cognitive standpoint, it requires little effort to

understand that Hardy struggled to cognitively perform all the material duties of his
occupation due to his susceptibility to fatigue, despite his ability to engage in physical
activities unrelated to his occupation.
18. The record also demonstrates that Hardy experienced near-daily nausea
and persistent, watery diarrhea during the 21 days that he took Revlimid. Unum argues

there is no evidence that the nausea and diarrhea were disabling, such as documented
weight loss, referrals to another provider for such symptoms, or orders for symptom-
specific testing and diagnostics. However, Dr. Vercellotti opined that Hardy’s symptoms
were consistent with post bone marrow transplant multiple myeloma patients, which

would appear to have negated the need for another provider’s opinion to assess the
source of such symptoms. Plus, the record demonstrates that Hardy took steps to
mitigate these symptoms because they were severe enough that they interfered with

lengthy work tasks.
19. Finally, Hardy consistently reported chronic pain, particularly in his pelvis
where he had bone damage and radiation therapy. Dr. Vercellotti’s treatment notes
reflect that Hardy’s pelvic pain “limit[ed] how long he can sit in an office chair without

getting up to stretch and require[d] him . . . to use his arms and hands to lift his left leg
when he gets into and out of his car.” (AR 2679–80.) Unum argues that treatment notes
indicate that Hardy presented no acute distress during his appointments, that Hardy was
regularly exercising, and that Hardy was not taking pain medication or seeking other

treatment options to address the pain. But Hardy’s pain grew from “minor at the start of
a prolonged period of sitting” to “significant to the point of distraction over long periods
of time sitting without breaks to stand and walk,” so the fact that Dr. Vercellotti did not
personally observe such pain during the (presumably short) clinic visits has little bearing
on whether Hardy’s chronic pain was disabling. (AR 2661.) Hardy reported that he

mitigated his chronic pain by eliminating lengthy periods of sitting, and some of his
material duties require sitting for lengthy periods of time, such as depositions and trial.
20. Considering all this evidence together, Dr. Vercellotti opined that
restrictions and limitations from Hardy’s condition prevented him from performing all the

material duties of his regular occupation as a medical malpractice trial attorney. Dr.
Vercellotti’s opinion is supported by medically acceptable clinical standards and
consistent with substantial evidence in the medical records. Moreover, Dr. Vercellotti has

expertise in treating multiple myeloma and has been treating Hardy since 2018. He is an
expert in the field of bone marrow transplants and has been working in the field for over
40 years. As neither Dr. Nosaka nor Dr. Greenstein specialize in the field of
oncology/hematology, Dr. Vercellotti’s opinion is entitled to significant weight given that

his specialty relates to Hardy’s alleged disability. See, e.g., Jalowiec v. Aetna Life Ins. Co.,

155 F. Supp. 3d 915, 942

 (D. Minn. 2015).  Additionally, though a treating physician’s 
opinion does “not automatically control,” Dr. Vercellotti was the only treating physician 
in this case and the only medical provider who evaluated Hardy in-person.  Delta Family-

Care Disability and Survivorship Plan v. Marshall,

258 F.3d 834, 842

 (8th Cir. 2001).  None 
of Unum’s medical reviewers evaluated Hardy in person.  Nor did the Court identify 
evidence in the record indicating that they spoke to Hardy directly when reviewing his 
claim.  Unum argues that Dr. Vercellotti’s opinions lack weight because Hardy’s clinic visits 
in 2020 and 2021 were conducted remotely, but virtual doctor visits were reasonable 

given Hardy’s immunocompromised state during COVID-19, and Dr. Vercellotti monitored 
Hardy’s condition primarily by reviewing his lab work and x-ray bone surveys.  Given his 
personal observations, the Court finds that Dr. Vercellotti’s opinion is entitled to greater 
deference than those of Unum’s reviewers.  Jackson v. Metro. Life Ins. Co.,

303 F.3d 884, 888

(8th Cir. 2002) (“We have held that a treating physician’s opinion is generally entitled
to greater deference in an ERISA disability case than the opinion of a reviewing
physician.”); see also Kaminski, 517 F. Supp. 3d at 862.

21. Notably, Dr. Dean does specialize in oncology/hematology. Yet his opinion
is still lacking. Dr. Dean—as well as Dr. Nosaka and Dr. Greenstein—failed to meaningfully
consider the long hours and periods of attention required of a medical malpractice trial
lawyer in their evaluation of Hardy’s claim. The reports from Unum’s medical reviewers

focus on the inconsistency of Hardy’s physical activities and his position’s sedentary
requirements. As a result, they fail to adequately account for the cognitive toll that
Hardy’s symptoms had on his functionality. The Court was unable to identify any
meaningful analysis of how Hardy’s fatigue and lack of stamina impacted his capacity to

resume full-time hours in Dr. Nosaka, Dr. Dean, or Dr. Greenstein’s reviews. None of them
sufficiently considered whether Hardy remained capable of preparing for or conducting
trials, or whether he could perform lengthy material duties that required sustained
attention for long periods of time. Further, although the reviewers point out that Hardy’s
occupation involves a sedentary level of physical demand, they fail to explain how Hardy’s

chronic pain in his pelvis would not materially disrupt his ability to sit for long periods.
22. The Court also considered Ken Askew’s Independent Employability
Assessment. Askew, an independent vocational expert, determined that Hardy was
working at his maximum vocational capacity on a part-time basis. And during his 2-1/2-

hour interview with Hardy, Askew personally observed that Hardy’s energy level, rate of
speech, and overall demeanor diminished. Askew also opined that the vocational
descriptions provided to Unum’s medical reviewers were incomplete and failed to

adequately describe the material duties of Hardy’s occupation. The fact that an
independent vocational reviewer who personally observed Hardy’s susceptibility to
fatigue reached the conclusion that Hardy remained incapable of working full-time as a
medical malpractice trial attorney supports a finding that Hardy remained disabled.

23. Two other factors support a finding that Hardy remained disabled. First, the
Court has found no evidence of significant improvements in Hardy’s condition in the
record. In a termination of benefits case, “unless information available to an insurer alters
in some significant way, the previous payment of benefits is a circumstance that must

weigh against the propriety of an insurer's decision to discontinue those payments.”
McOsker v. Paul Revere Life Ins. Co.,

279 F.3d 586, 589

 (8th Cir. 2002).  This does not shift 
the burden to Unum; it is instead just a consideration.  See

id.

  There may have been some 
improvement in Hardy’s peripheral neuropathy and other symptoms which were the 
basis of granting his disability in the first place.  But Dr. Vercellotti documented continuing 

problems.  And there is no evidence of significant improvements in Hardy’s fatigue or lack 
of stamina, for instance, that would have made it possible for Hardy to complete the 
material duty of preparing for and conducting trials.  Because Hardy’s symptoms and 
much of the other evidence remained largely consistent, the available information did not 

alter in some significant way.                                            
    24.  Second, there was also a lack of a significant change in Hardy’s physical 
activities when Unum terminated his benefits.  If an insurer terminates benefits based on 

a change in the claimant’s activities, despite the fact that the insurer already knew about 
those activities, it cuts against the termination of benefits.  Morgan v. Unum Life Ins. Co. 
of Am.,

346 F.3d 1173

, 1177–78 (8th Cir. 2003). Unum based its termination of benefits in
part on Hardy’s level of physical activity. But Unum already knew about some of Hardy’s

physical activities when it recertified his benefits. Dr. Vercellotti’s treatment records
show that Hardy was regularly exercising under his care. See id.; see also Kaminski, 517
F. Supp. 3d at 863–64 (holding that Unum’s prior approval of claimants claim, under the
same definition of disability and with no evidence of significant change in claimant’s

condition, weighed against the propriety of Unum’s decision). This factor therefore
supports a finding that Hardy remained disabled.
25. Ultimately, whether Hardy remained disabled on December 10, 2020
depends on the material duties of his occupation. These required, among other things,

interviewing clients and witnesses, taking and defending depositions, attending pre-trial
hearings, and preparing for and conducting trial. The record indicates that Hardy
struggled to, among other things, type and write, to maintain attention for long periods
of time, and to sit for long periods of time. Additionally, Hardy’s colleagues declared that

Hardy was incapable of preparing for and conducting trials due to his limitations. These
limitations in connection with Hardy’s other limitations—including his nausea and
diarrhea—would render Hardy unable to complete his required material duties,

particularly conducting trials or tasks requiring sustained attention or sitting for long
hours or consecutive days. Though there is mixed evidence in the record, and Hardy’s
claim may not have survived under an abuse of discretion standard, here the Court finds
that the consistency of Hardy’s reported symptoms, supporting medical records and

research, Dr. Vercellotti’s opinion and expertise, the Independent Employability
Assessment, and the statements from Hardy’s law partners and spouse corroborate
Hardy’s purported restrictions and limitations. Thus, substantial evidence demonstrates
that by a preponderance of the evidence Hardy could not have completed the material

duties of his regular occupation as of December 10, 2020.
26. Because he could not complete the material duties of his regular
occupation, Hardy was disabled under the Policy as of December 10, 2020. Therefore,

Unum wrongfully terminated his benefits.
27. Because Unum wrongfully terminated his benefits, the Court will grant
Hardy’s motion, deny Unum’s motion, and order Unum to reinstate Hardy’s benefits.
B. Award of Benefits

28. Hardy asks the Court to reinstate his benefits and require Unum to pay
retroactive benefits to him through December 10, 2020. In ERISA actions, the Court may
clarify “rights to future benefits under the terms of the plan,” such that it is authorized to
issue orders related to future payments, not just back-benefits. See

29 U.S.C. § 1132

(a)(1)(B); Welsh v. Burlington N., Inc., Emp. Benefits Plan,

54 F.3d 1331

, 1339–40 (8th 
Cir. 1995).                                                               
    29.  Because Hardy does not have an ongoing duty to prove his disability, the 

Court will order Unum to pay retroactive benefits to Hardy through December 10, 2020, 
and reinstate Hardy’s benefits until Unum determines that Hardy is not disabled under 
the Policy.                                                               
    30.  Regarding the calculation of Hardy’s monthly benefits, for the  reasons 
stated below the Court will order Unum to calculate any owed and future benefits by pro-

rating Hardy’s annual partner distributions over the year in which they are received.8   
    31.  Examining the Policy’s language, Kitterman,

632 F.3d at 448

, the Court finds 
no clear direction on how annual partner distributions should be treated in the monthly 
benefit calculation.  The Policy states that if an insured is working part-time and “earning 

more than 20 [percent] of his indexed pre-disability earnings,” then, after 12 months, the 
monthly benefit will be recalculated by a formula that subtracts the “monthly earnings” 
that the insured receives while he is disabled from the insured’s indexed pre-disability 

earnings.  (POL 15.)  The Policy does not provide a definition for “monthly earnings.” 
    32.  Because the Policy does not define “monthly earnings” that an insured 
receives  while  disabled,  the  Court  must  “accord  policy  terms  their  ordinary,  plain 
meaning.”  Spizman v. BCBSM, Inc.,

855 F.3d 924, 927

 (8th Cir. 2017).  “Recourse to the 

ordinary, dictionary definition of words is not only reasonable, but may be necessary.”  
Khoury v. Grp. Health Plan, Inc.,

615 F.3d 946, 955

 (8th Cir. 2010) (citations omitted).   
    33.  When  considering  ambiguities  in  an  ERISA  plan,  the  Court  must  apply 
“federal law, not Minnesota law, construing disputed language ‘without deferring to 




    8 Because Unum clarified that it does not challenge the calculation of previously paid 
benefits, the Court need not consider Hardy’s argument that Unum is now barred by the statute 
of limitations or failed to assert a compulsory counterclaim regarding this issue. 
either party’s interpretation.’”  Spizman,

855 F.3d at 927

 (quoting Brewer v. Lincoln Nat’l 
Life Ins. Co.,

921 F.2d 150, 154

 (8th Cir. 1990)).                        

    34.  “Earnings” are defined as  “[r]evenue gained from labor or services, from 
the investment of capital, or from assets.”  Earnings, Black’s Law Dictionary (12th ed. 
2024).  Because partner distributions are revenue gained from labor or services, the Court 
finds that they qualify as “earnings.”  This interpretation is consistent with Eighth Circuit 

precedent, which holds that bonuses can be included in calculations for monthly disability 
benefits.  Riddell v. Unum Life Ins. Co. of Am.,

457 F.3d 861

, 863–64 (8th Cir. 2006); see 
also Neumiller v. Hartford Life & Accident Ins. Co., No. 22-35688,

2023 WL 4173022

, at *2 
(9th Cir. June 26, 2023) (concluding that trimester bonuses were “earnings” which could 

be pro-rated over the months in which they were accrued rather than the month in which 
the bonus was distributed).9  Accordingly, in calculating the monthly benefit, Hardy’s 
annual partner distributions should be pro-rated over the year in which they are received. 

    C.   Attorney Fees and Costs                                         
    35.  Because the Court finds that Unum improperly terminated Hardy’s benefits, 
the Court must determine whether to award Hardy attorney’s fees and costs. 



    9 See, e.g., Lee v. Fortis Benefits Ins. Co., No. 03-3589,

2006 WL 777224

, at *1 (D. Minn. 
Mar. 27, 2006) (considering an ERISA plan where the plan’s language explicitly included bonuses 
in the disability earnings calculation and required them to be pro-rated over the time in which 
they accrued); Fine v. Sun Life Assurance Co. of Can.,

97 F. Supp. 3d 799

, 808–13 (E.D. Va. 2015) 
(finding no abuse of discretion where insurer included insured’s profit sharing bonus as disability 
earnings).                                                                
    36.  ERISA provides that “the court in its discretion may allow a reasonable 
attorney’s fee and costs of action to either party.”

29 U.S.C. § 1132

(g)(1).  Although the 

decision to award attorney’s fees and costs is discretionary, a court should “apply its 
discretion  consistent  with  the  purposes  of  ERISA,  those  purposes  being  to  protect 
employee rights and to secure effective access to federal courts.”  Starr v. Metro Sys., Inc.,

461 F.3d 1036

, 1040 (8th Cir. 2006) (quoting Welsh,

54 F.3d at 1342

).  “Therefore, although 

there is no presumption in favor of attorney fees in an ERISA action, a prevailing plaintiff 
rarely fails to receive fees.”

Id.

 at 1040–41.                           
    37.  The Eighth Circuit has provided a list of five non-exclusive factors for courts 

to consider:                                                              
         (1) the degree of the opposing parties’ culpability or bad faith; 
         (2) the ability of the opposing parties to satisfy an award of  
         attorneys’  fees;  (3)  whether  an  award  of  attorneys’  fees 
         against the opposing parties could deter other persons acting   
         under  similar  circumstances;  (4)  whether  the  parties      
         requesting attorneys’ fees sought to benefit all participants   
         and beneficiaries of an ERISA plan or to resolve a significant  
         legal qeustion [sic] regarding ERISA itself; and (5) the relative 
         merits of the parties’ positions.                               

Lawrence v. Westerhaus,

749 F.2d 494, 496

 (8th Cir. 1984); accord Starr, 461 F.3d at 1041.  
The factors are general guidelines, Martin v. Ark. Blue Cross & Blue Shield,

299 F.3d 966

,
972 (8th Cir. 2002), and no one factor is dispositive, see Starr, 461 F.3d at 1041.
38. The Court will award Hardy reasonable attorney’s fees and costs. While
there is no indication that Unum acted in bad faith, there is evidence that Unum failed to
exercise the care required of it throughout the administrative process. For instance,
Unum’s medical reviewers failed to properly explain how Hardy’s physical activities were

inconsistent with his symptoms or how those activities indicated that Hardy was capable
of performing all the material duties of his occupation as a trial lawyer on a full-time basis.
An award of attorney’s fees would also be consistent with ERISA’s remedial nature, as
awarding attorney’s fees here may deter administrators from mishandling claims with

similar records. See id. Moreover, there is no indication that Unum is unable to pay
attorney’s fees. See e.g., Kaminski, 517 F. Supp. 3d at 869.
39. Before the Court can make a final award of attorney’s fees, however, Hardy

must submit an affidavit supporting his reasonable attorney’s fees and costs. Prior to
submitting the affidavit, the parties must meet and confer to attempt to resolve any
differences on the reasonableness of the fees and costs.
D. Prejudgment Interest
40. Hardy seeks prejudgment interest on the award of past due long-term

disability benefits.
41. Although ERISA does not expressly provide for prejudgment interest,
prejudgment interest awards are permitted by

29 U.S.C. § 1132

(a)(3)(B), which allows a 

court to award “other appropriate equitable relief” in ERISA cases.  Parke v. First Reliance 
Standard Life Ins. Co.,

368 F.3d 999, 1006

 (8th Cir. 2004).  Courts have discretion to award 
prejudgment interest.  Mansker v. TMG Life Ins. Co.,

54 F.3d 1322, 1330

 (8th Cir. 1995).  
Awarding  prejudgment  interest  is  appropriate  unless  “exceptional  or  unusual 
circumstances exist making the award of interest inequitable.”

Id. at 1331

 (citation 
omitted).  The purpose of such an award is to compensate the prevailing party and to 

prevent a wrongdoer’s unjust enrichment.  Christianson v. Poly-Am., Inc. Med. Benefit 
Plan,

412 F.3d 935, 941

(8th Cir. 2005).
42. Because the Court finds that Unum improperly terminated Hardy’s disability
benefits and there are no exceptional or unusual circumstances, the Court will award

prejudgment interest.
43. Before calculating the award of prejudgment interest, Hardy must submit
an affidavit calculating his past due long-term disability benefits from December 10, 2020

through the present. Additionally, the parties must meet and confer to attempt to resolve
any differences on the appropriate prejudgment interest rate before Hardy files an
affidavit. If the parties do not agree to a prejudgment rate, the parties must submit briefs
to the Court with their positions on the appropriate rate.

ORDER FOR JUDGMENT
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED AND DECLARED that:
1. Defendant’s Motion for Judgment on the Administrative Record [Docket No.

25] is DENIED;
2. Plaintiff’s Motion for Judgment on the Administrative Record [Docket No. 31]
is GRANTED;
3. Defendant is ordered to pay Plaintiff damages in the amount of all his unpaid
long-term disability benefits from the date of termination to the present, in an

amount to be determined;
4. Defendant is ordered to reinstate Plaintiff’s long-term disability benefits;
5. Defendant is ordered to calculate any owed and future benefits by pro-rating
Plaintiff’s annual partner distributions over the year in which they are received;

6. Plaintiff’s request for reasonable attorney fees, costs, and prejudgment
interest is GRANTED;
7. The parties are ordered to meet and confer to discuss the amount of benefits

owed, the reasonableness of Plaintiff’s attorney fees and costs, and the proper
calculation of prejudgment interest;
8. If the parties agree on the amounts, the parties shall submit a joint proposed
judgment within 28 days after entry of this Order; and

9. If the parties disagree:
a. Plaintiff shall submit an affidavit substantiating his attorney’s fees and
costs incurred in this matter and a brief addressing his positions on the
benefits owed and on prejudgment interest including calculating the

interest owed within 28 days after entry of this Order; and
b. Defendant may submit a response to Plaintiff’s attorney’s fees and
costs affidavit and a brief explaining its positions on the benefits owed
and on prejudgment interest including calculating the interest owed
within 14 days after Plaintiff submits his filings.
LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: September 4, 2024 W. ( rerbin
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge

-48-

Trial Court Opinion

                   UNITED STATES DISTRICT COURT                          
                      DISTRICT OF MINNESOTA                              
MARK W. HARDY,                                                           
                                      Civil No. 23-563 (JRT/JFD)         
                       Plaintiff,                                        

v.                                                                       
                                 MEMORANDUM OPINION AND ORDER            
UNUM LIFE INSURANCE COMPANY OF   ON CROSS MOTIONS FOR JUDGMENT           
AMERICA,                          ON THE ADMINISTRATIVE RECORD           

                      Defendant.                                         

    Denise Yegge Tataryn, NOLAN THOMPSON LEIGHTON & TATARYN PLC,         
    1011 First Street South, Suite 410, Hopkins, MN 55343, for Plaintiff. 

    Jake Elrich and Terrance J. Wagener, MESSERLI & KRAMER P.A., 100 South 
    Fifth Street, Suite 1400, Minneapolis, MN 55402, for Defendant.      


    Mark W. Hardy brings this action against Defendant Unum Life Insurance Company 
of America (“Unum”) pursuant to the Employee Retirement Income Security Act of 1974 
(“ERISA”),